Opinion
Case No. 6:20-cv-950-Orl-37GJK
2020-08-10
INTERSTELLAR PRODUCTIONS, INCORPOROATED d/b/a EyeCon, Plaintiff, v. Sophia BUSH, Defendant.
Richard W. Smith, NeJame Law, PA, Orlando, FL, Scott M. Behren, Behren Law Firm, Weston, FL, for Plaintiff. Jeffrey Michael Partlow, Scott A. Shelton, Melissa Danielle Crowley, Cole, Scott & Kissane, PA, Orlando, FL, for Defendant.
Richard W. Smith, NeJame Law, PA, Orlando, FL, Scott M. Behren, Behren Law Firm, Weston, FL, for Plaintiff.
Jeffrey Michael Partlow, Scott A. Shelton, Melissa Danielle Crowley, Cole, Scott & Kissane, PA, Orlando, FL, for Defendant.
ORDER
ROY B. DALTON JR., United States District Judge
Before the Court is Defendant Sophia Bush's motion to dismiss for lack of personal jurisdiction. (Doc. 7 ("Motion ").) Plaintiff Interstellar Productions Incorporated d/b/a EyeCon ("EyeCon ") responded (Doc. 19) and Ms. Bush replied (Doc. 26). On review, the Motion is granted.
I. BACKGROUND
This case is about a Twitter skirmish. EyeCon, a Florida corporation based out of Winter Garden, Florida, organizes and runs TV show fan conventions. (Doc. 2-5 ¶¶ 2, 8.) EyeCon was planning one such convention in October 2018 for fans of the popular TV series, "One Tree Hill" ("Convention "). (Id. ¶ 9.) It was to be held in Wilmington, North Carolina, and would involve former cast members of the show. (Id. ; Doc. 7-1, ¶ 19.) And the Convention was to have a "theme"—sexual assault, specifically the sexual assault suffered by female stars of One Tree Hill while on the show. (Doc. 2-5, ¶ 11; Doc. 7-1, ¶ 31.) One small problem: not all the female stars were on board.
The first shot came from former cast member Hilary Burton, who tweeted she felt "exploited by [EyeCon's] ‘girl power’ angle." (Doc. 2-5, ¶ 17.) Fans and EyeCon responded with a defensive volley; EyeCon tweeted, Burton "doesn't know us, and she doesn't know that some of our staff has had experiences too, it is unfair of her to judge our stories as unworthy before we can even tell them." (Id. ¶¶ 18–19.) Seeing a fellow-cast member under attack, Ms. Bush (another One Tree Hill star) waded into the fray, rapid-fire tweeting from her home in California, where she permanently lives. (Id. ¶ 20; Doc. 7-1, ¶ 3.) Ms. Bush warned Twitterverse that Ms. Burton was "her sister" and not to mess with her, before taking aim squarely at the "women empowerment" theme of the Convention. (See Doc. 7-1, pp. 7–14.) As part of her tweet-barrage, she protested the theme as exploitive because "[t]hey did not ask us" before announcing "a deeply personal theme ... without thinking about us at all." (Id. at 12.) She concluded by saying, "This is me officially saying I'm out too." (Id. at 14.)
By the time the digital dust settled, EyeCon claimed heavy damage. According to EyeCon, Ms. Bush's fans no longer trusted it, calling it "LieCon"—and the Convention's attendance dropped by over 75% compared to the previous One Tree Hill convention (also held in North Carolina). (Doc. 2-5, ¶¶ 24–25; Doc. 19, pp. 10–12.) And EyeCon says it struggled to put on other conventions (for other TV shows) in Florida. (Doc. 19, p. 15.) EyeCon says Ms. Bush's tweets were false, swearing it had been in negotiations with Ms. Bush's agents by telephone and email, and included the theme of the convention. (Id. at p. 15, ¶ 7.) But Ms. Bush denies being told of the Convention's theme, pointing out EyeCon never communicated directly to her about the Convention. (Doc. 7-1, ¶¶ 30, 31.)
Ms. Bush also disavows any connection to Florida in her tweets. She was born, lives, and works in California and has a California driver's license; never paid taxes or voted in Florida; has no mortgages, real property, bank accounts, or direct investments in Florida; didn't know EyeCon was a Florida corporation; does not know of any reputation EyeCon may have in Florida or its Florida consumer base; doesn't target Florida with her Twitter page; and had no intention or knowledge her tweets would have any impact in Florida. (Doc. 7-1, ¶¶ 2–11, 14–15, 22–24, 27.)
EyeCon sued Ms. Bush here, in Florida, alleging libel. (See Doc. 2-5.) Ms. Bush now moves to dismiss for lack of personal jurisdiction. (Doc. 7.) With EyeCon's response (Doc. 19) and Ms. Bush's reply (Doc. 26), the matter is ripe.
II. LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(2) provides the mechanism for challenging a complaint for lack of personal jurisdiction. "The plaintiff has the burden of establishing a prima facie case of personal jurisdiction over a nonresident defendant." Meier ex rel. Meier v. Sun Int'l Hotels, Ltd. , 288 F.3d 1264, 1268–69 (11th Cir. 2002) (citation omitted). If unrefuted, the Court accepts the well-pled facts as true. Posner v. Essex Ins. Co. , 178 F.3d 1209, 1215 (11th Cir. 1999). But if "the defendant submits affidavits to the contrary, the burden traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction unless those affidavits contain only conclusory assertions that the defendant is not subject to jurisdiction." Meier , 288 F.3d at 1269 (citing Posner , 178 F.3d at 1215 ). Should the plaintiff's complaint and supporting evidence conflict with the defendant's affidavits, a court "must construe all reasonable inferences in favor of the plaintiff." Id. (citing Madara v. Hall , 916 F.2d 1510, 1514 (11th Cir. 1990) ).
III. ANALYSIS
Can EyeCon establish specific personal jurisdiction over Ms. Bush in Florida? (See Docs. 7, 19.) The Court can exercise jurisdiction over Ms. Bush if both Florida's long-arm statute and the Due Process Clause of the Fourteenth Amendment permit. Posner , 178 F.3d at 1214. Bush does not dispute Florida's long arm statute applies to this libel action. (See Doc. 7.) So let's turn to due process. In specific personal jurisdiction cases, courts apply a three-part test for due process, asking: (1) if the plaintiff's claims "arise out of or relate to" defendant's contacts with the forum; (2) if the nonresident defendant "purposefully availed" herself "of the privilege of conducting activities within the forum state, thus invoking the benefit of the forum state's laws"; and (3) if "the exercise of personal jurisdiction comports with traditional notions of fair play and substantial justice." Louis Vuitton Malletier, S.A. v. Mosseri , 736 F.3d 1339, 1355 (11th Cir. 2013) (quotation marks and citations omitted). If the plaintiff shows the first two prongs are met, the burden shifts to the defendant to establish jurisdiction is improper under the third prong. Id.
Both parties agree Ms. Bush is not subject to general personal jurisdiction. (Doc. 7, pp. 6–8; Doc. 19, p. 1.)
In Florida, libel is generally held to occur "wherever the offending material is circulated." Madara , 916 F.2d at 1515. Florida's long arm statute extends jurisdiction over any party that "commit[s] a tortious act within the state." Id. at 1515 n.3 (quoting Fla. Stat. § 48.193(1)(b) ). So this Court has jurisdiction under Florida's long-arm statute since the tweets were published online, including in Florida where fans accessed them. See id. ; (Doc. 7; Doc. 19, ¶ 9).
A. Arising Out Of
This first prong asks if there is a "direct causal relationship between the defendant, the forum, and the litigation." Mosseri , 736 F.3d at 1355–56 (citation omitted). EyeCon argues Ms. Bush has two Florida contacts that relate to EyeCon's libel claim: (1) her tweets, accessible in Florida; and (2) her ongoing contract negotiations with EyeCon. (Doc. 19, p. 3.) Ms. Bush says this isn't enough, but EyeCon has the better argument. (See Doc. 7, pp. 9–10.) EyeCon's libel claim arises out of Ms. Bush's tweets, which were accessed by Floridian Twitter followers and are allegedly libelous because of ongoing contract negotiations with EyeCon, a Florida corporation. (See Doc. 19, pp. 3, 15.) This is enough. See Miller v. Gizmodo Media Grp., LLC , 383 F. Supp. 3d 1365, 1372–73 (S.D. Fla. 2019). So EyeCon wins this first battle, but the fight isn't over.
B. Purposeful Availment
EyeCon loses prong two (purposeful availment), and so loses the war. For intentional torts, there are two separate tests for purposeful availment: (1) the Calder "effects test"; and (2) the "traditional test." See Mosseri , 736 F.3d at 1356. Let's look at each.
The effects test was first articulated in Calder v. Jones , where the U.S. Supreme Court held California had jurisdiction over non-resident defendants when the defendants wrote and edited an allegedly libelous article about the plaintiff, a California citizen, that was circulated widely throughout the United States, including California. 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). The effects test applies in intentional tort claims, asking if the alleged misconduct was "aimed at the forum state" and "caused harm that the defendant should have anticipated would be suffered in the forum state. Mosseri , 736 F.3d at 1356 (citation omitted). EyeCon argues the Court has jurisdiction under the effects test because Ms. Bush "intentionally and purposefully" directed her tortious conduct at a resident of this forum. (Doc. 19, pp. 4–5.) But that isn't enough. See Walden v. Fiore , 571 U.S. 277, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014).
The defendant must have minimum contacts "with the forum State itself," not just "with persons who reside there." Id. at 285, 134 S.Ct. 1115. "Due process requires that a defendant be haled into court in a forum State based on [her] own affiliation with the State, not based on the ‘random, fortuitous, or attenuated’ contacts [she] makes by interacting with other persons affiliated with the State." Id. at 286, 134 S.Ct. 1115. Calder wasn't about where the harm was felt, it was about defendants’ "ample" contacts with the forum state: the defendants "relied on phone calls to ‘California sources’ for the information in their article; they wrote the story about the plaintiff's activities in California; they caused reputational injury in California by writing an allegedly libelous article that was widely circulated" in California; and "the ‘brunt’ of that injury was suffered by the plaintiff" in California. Id. at 287, 134 S.Ct. 1115 (citing Calder , 465 U.S. at 788–89, 104 S.Ct. 1482 ).
Ms. Bush does not have the minimum required contacts with Florida under the effects test for personal jurisdiction. While Ms. Bush's agents may have been in contact with EyeCon "via telephone and email" to negotiate her appearance at the Convention, Ms. Bush was not—and even if the conduct could be imputed, EyeCon is suing over her tweets, not misconduct stemming from those negotiations. (Doc. 2-5; Doc. 7-1, ¶ 30; Doc. 19, p. 15 ¶ 7.) And the negotiations—and the tweets and the entire controversy—focused on a convention in North Carolina, not Florida. (Doc. 7-1, ¶ 19.) Ms. Bush, at the time of tweeting, didn't know EyeCon was a Florida corporation—nor did she target Florida in her tweets about the North Carolina Convention. (Doc. 7-1, ¶¶ 22–26.)
EyeCon argues the negotiations show Ms. Bush's Tweets were libelous, but it presents no evidence Ms. Bush knew of the content of these negotiations or that she personally participated (and she denies this), so this connection is too "attenuated" to be a forum contact between Ms. Bush and Florida. (See Doc. 19, p. 3); Walden , 571 U.S. at 286, 134 S.Ct. 1115.
From the evidence, Ms. Bush had no reason to believe EyeCon would feel the "brunt" in Florida. (See id. ) Nor is it even clear the brunt of the harm was suffered in Florida. True, EyeCon says it holds most of its conventions in Florida. (Doc. 19, p. 16.) But the One Tree Hill conventions were not and there is no evidence EyeCon conventions or One Tree Hill conventions are attended primarily by Florida residents, that Florida has a disproportional share of One Tree Hill fans, or that Florida residents were particularly outraged or interested in Ms. Bush's allegedly libelous tweets. (See Doc. 19; Doc. 7-1, ¶¶ 19, 21); see also Vision Media TV Grp., LLC v. Forte , 724 F. Supp. 2d 1260, 1266 (S.D. Fla. 2010) (no personal jurisdiction in libel case brought by Floridian plaintiffs where no evidence showing the offending website targeted Florida or a Florida audience). In this digital age, with this digital dispute, EyeCon hasn't shown it suffered the brunt of its reputational injury in Florida or that Ms. Bush's tweets are enough contact with Florida such that the Court can exert jurisdiction over her, absent evidence Ms. Bush targeted Florida or the dispute particularly interested Florida residents. See Miller , 383 F. Supp. 3d at 1373 (citing Calder , 465 U.S. at 789, 104 S.Ct. 1482 ); Forte , 724 F. Supp. 2d at 1266. Ms. Bush's only significant Florida contacts were with EyeCon—not the forum state itself—and EyeCon has failed to show why a citizen of California tweeting from California about a convention in North Carolina should be haled into Florida. (Doc. 7-1, ¶¶ 3–5, pp. 6–15; see also Doc. 19.) So EyeCon's arguments under the effects test fails. See Walden , 571 U.S. at 285–86, 134 S.Ct. 1115 ; Miller , 383 F. Supp. 3d at 1373.
Nor can EyeCon satisfy the "traditional" test for purposeful availment to establish jurisdiction over Ms. Bush. Under the traditional test, courts ask whether the defendant's contacts: "(1) are related to the plaintiff's cause of action; (2) involve some act by which the defendant purposefully availed [herself] of the privileges of doing business within the forum; and (3) are such that the defendant should reasonably anticipate being haled into court in the forum." Mosseri , 736 F.3d at 1357. There is no evidence here the second and third requirements are satisfied. Ms. Bush received no endorsements or payments for the tweets to constitute "doing business within the forum." (Doc. 7-1, ¶¶ 28–29). And she couldn't "reasonably anticipate" being haled to Florida, when the relevant conduct was focused on an event in North Carolina and she didn't know EyeCon was a Florida corporation. (See id. ¶¶ 19, 21–22, 30.) So the evidence fails to establish Florida has jurisdiction over Ms. Bush under the traditional test. See Aviation One of Fla., Inc. v. Airborne Ins. Consultants (Pty), Ltd. , 722 F. App'x 870, 881–82 (11th Cir. 2018) ; Miller , 383 F. Supp. 3d at 1375 (explaining courts "have uniformly rejected the argument that a tweet, not specifically directed to a forum state, is a sufficient minimum contact to confer personal jurisdiction").
EyeCon did not argue Ms. Bush had minimum contacts under the traditional test but the Court addresses it even so. (See Doc. 19.)
Since EyeCon has failed to show Ms. Bush had the minimum contacts with Florida to establish jurisdiction, the Court need not decide if exerting jurisdiction would violate traditional notions of fair play and substantial justice. See Walden , 571 U.S. at 291, 134 S.Ct. 1115 ; Rowe v. Gary, Williams, Parteni, Watson and Gary, P.L.L.C. , 723 F. App'x 871, 876 (11th Cir. 2018). The Complaint is dismissed for lack of personal jurisdiction.
IV. CONCLUSION
It is ORDERED AND ADJUDGED :
1. Defendant Sophia Bush's Motion to Dismiss Amended Complaint (Doc. 7) is GRANTED.
2. The Complaint (Doc. 2-5) is DISMISSED WITHOUT PREJUDICE for lack of personal jurisdiction.
3. The Clerk is DIRECTED to terminate all pending motions and close the file.
DONE AND ORDERED in Chambers in Orlando, Florida, on August 10, 2020.